Hai v Minister of Immigration
[2019] NZCA 55
•15 March 2019 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA536/2017 [2019] NZCA 55 |
| BETWEEN | MOHAMMED NAUSHAD HAI |
| AND | MINISTER OF IMMIGRATION |
| AND | IMMIGRATION AND PROTECTION TRIBUNAL |
| Hearing: | 11 June 2018 |
Court: | Winkelmann, Clifford and Williams JJ |
Counsel: | E Telle for Applicant |
Judgment: | 15 March 2019 at 2.00 pm |
JUDGMENT OF THE COURT
AApplication to adduce further evidence granted.
BApplication for leave to appeal granted in relation to the following questions:
(a)Was the Tribunal’s finding, that because Mr Hai did not permanently reside with his children the negative impact on the children of deportation was outweighed by other factors, made without evidence reasonably capable of supporting that conclusion, especially in light of the new evidence of Ms Wikaira and Dr Armstrong?
(b)If the answer to question (a) is yes, did this cause the Tribunal to misapply arts 3 and 9 of the United Nations Convention on Rights of the Child?
(c)If the answer to question (b) is yes, should the proceeding be referred back to the Tribunal for rehearing?
CThe application for leave to appeal is otherwise declined.
DThe respondent must pay the applicant costs for a standard application on a band A basis and usual disbursements.
ECosts in the High Court are to be dealt with in that Court.
____________________________________________________________________
REASONS OF THE COURT
(Given by Williams J)
Mr Hai is subject to a deportation liability notice. His appeal to the Immigration and Protection Tribunal (the Tribunal) against that notice was dismissed.[1] The appeal was brought on humanitarian grounds, but the Tribunal found that it would not be unjust or unduly harsh to deport Mr Hai.[2] Separate applications for leave to appeal and to bring judicial review proceedings against the Tribunal decision were declined by Woolford J in the High Court.[3] Mr Hai now seeks leave from this Court under s 245(1) of the Immigration Act 2009 (the Act) to bring his appeal in the High Court. The dismissal of the application for leave to bring judicial review proceedings was not appealed.
[1]Hai v Minister of Immigration [2017] NZIPT 600343 [Tribunal decision].
[2]At [64].
[3]Hai v Minister of Immigration [2017] NZHC 2028 [High Court decision].
Mr Hai has identified three questions of law for the appeal if leave is granted:
(a)Whether the Tribunal erred in law by failing to consider various international obligations, in particular arts 13, 15(1) and 23 of the International Covenant on Civil and Political Rights (ICCPR);[4] arts 3(1), 3(2), 9(1), 12(1), 12(2) and 18(1) of the United Nations Covenant on Rights of the Child (UNCROC);[5] and art 10(1) of the International Covenant on Economics, Social and Cultural Rights (ICESCR).[6]
(b)Whether the Tribunal erred in fact, amounting to an error of law, in finding that Mr Hai and his partner “choose not to live together and there is no current plan to do so in the near future”.[7]
(c)Whether the Tribunal erred in fact, amounting to an error of law, in finding that Mr Hai’s “youngest child is too young to have formed a close attachment to [Mr Hai] such that he would realise [Mr Hai’s] absence”.[8]
[4]International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).
[5]United Nations Convention on Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).
[6]International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened for signature 16 December 1966, entered into force 3 January 1976).
[7]Tribunal decision, above n 1, at [46].
[8]At [48].
In addition to his application for leave to appeal, Mr Hai also sought leave to adduce further evidence in this Court. The new evidence comprised his own affidavit which updated his employment and travel situation and explained why the following two further affidavits were only available at a late stage. The other two affidavits were from a teacher of Mr Hai’s two younger daughters and from a consultant forensic psychiatrist. We will return to that evidence and the application below.
Factual background
Mr Hai is a Fijian citizen who has spent 31 of his 59 years resident in New Zealand. He came to this country in 1987 on a visitor’s visa but stayed after its expiry. He married Marie Diane Peri, a New Zealand citizen in 1991 and they now have three adult children. In that year he pleaded guilty to eight counts of using a document to obtain a pecuniary advantage. He was served with a removal warrant and returned to Fiji in 1993. In 1994 he was allowed to enter New Zealand again to be with his family. In time the marriage failed and in around 2010 Mr Hai began a relationship with his current partner Ms Winikerei. They have three young children together: two daughters and a son. At the time of the Tribunal’s decision they were five, four and one respectively. Mr Hai lives and works in Auckland. Ms Winikerei and the children live in Omanaia which is a small rural kāinga in Hokianga.
Between 1998 and 2012, Mr Hai defrauded Work and Income New Zealand of $115,470.00 by obtaining a Domestic Purposes Benefit when he was not in fact a solo parent, and providing false information to acquire other benefits, including the use of multiple identities. He pleaded guilty to 12 counts of using a document to obtain a pecuniary advantage and seven counts of obtaining by deception. He was sentenced to 20 months’ imprisonment and ordered to pay reparation. All in all, Mr Hai has at least 29 New Zealand convictions for dishonesty, driving offences (including multiple for drink driving) and domestic violence. The Minister of Immigration (the Minister) issued a deportation liability notice under s 161 of the Act, over one year after Mr Hai’s release from prison. Mr Hai appealed to the Tribunal against his liability to deportation in accordance with s 161(2)(a) of the Act.
The statutory test to be applied in an appeal on humanitarian grounds is set out in s 207(1) of the Act. As relevant to the issue in this application it provides:
207 Grounds for determining humanitarian appeal
(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—
(a)there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
…
The Tribunal decision
The Tribunal heard evidence from Mr Hai and his wife Marie Diane Hai. It also received a written statement from Mr Hai’s current partner, Ms Winikerei.
Mr Hai’s evidence was that he continued to financially support his older children (from Mrs Hai) and that he also provides some financial support for the young children (from Ms Winikerei). His evidence was summarised by the Tribunal in these terms:
[22] As to his three younger children by Ms Winikerei, [Mr Hai] says that he buys them clothes and shoes as they need them and estimates that he has spent some $4,000 on them in the past year. He does not provide financial assistance to Ms Winikerei herself, however. While they are living apart at the moment, he hopes that they will be able to continue their relationship in the future. He says that they are living apart only because of his work commitments in Auckland and the fact that Ms Winikerei needs to be near her elderly father, following the recent death of her mother. A further complication is that Ms Winikerei’s siblings do not like him.
The evidence of Mrs Hai was that her relationship with Mr Hai continued “on good terms” and that he supported her financially.[9]
[9]At [26].
Ms Winikerei’s perspective was that economic and whānau circumstances demanded they live apart for the time being.[10] The written statement provided by Ms Winikerei was summed up by the Tribunal in these terms:
[29] … He needs to be in Auckland for his work and she needs to be in the Hokianga region for the children. [Mr Hai] comes up regularly to see them all.
[30] If the appellant is deported, Ms Winikerei will be “lost” without his support, both financial and emotional. The children love him and he loves them. He supports them “emotionally and in a fully paternal role”.
[10]At [29].
The Tribunal then set out the test in s 207(1) of the Act and made its own assessment. The Tribunal found that there were exceptional humanitarian circumstances in Mr Hai’s case.[11] These were as follows:
(a)Mr Hai had been lawfully resident in New Zealand for 23 years.
(b)The three younger children would no longer be able to maintain a close physical relationship with their father. The Tribunal considered “their entire development” would take place without any “close input from their father”.[12]
[11]At [50].
[12]At [54].
These circumstances, the Tribunal found, satisfied the first stage of the s 207(1) test but only by “a small margin”.[13] In coming to this conclusion, the Tribunal took into account that while Mr Hai continued to play a “meaningful role” in Ms Winikerei’s life, she was nonetheless “used to living on her own for extended periods” and has the support of her family resident in the Hokianga area.[14] Furthermore, the Tribunal considered that the youngest of the children, was, “too young to have formed a close attachment to [Mr Hai] such that he [the son] would realise [Mr Hai’s] absence”.[15]
[13]At [50].
[14]At [47].
[15]At [48].
The Tribunal then considered whether those circumstances meant that deportation would be unduly harsh or unjust.[16] The Tribunal concluded it would not.[17] The countervailing considerations taken into account were as follows:
(a)Mr Hai’s benefit fraud was serious.[18]
(b)Mr Hai had already received an indulgence following offending in 1991 when, having been deported, he was allowed to return to New Zealand in 1994.[19]
(c)Overall, he had a poor record of compliance with New Zealand law while resident here.[20]
(d)The impact of deportation on the younger three children would be moderated:[21]
… by the reality that [Mr Hai] currently (and, as best as the Tribunal can determine, for the foreseeable future) does not live with them and sees them only fortnightly. They are used to extended periods without his presence and relying on the support of their mother and her family.
High Court
[16]At [56]–[65].
[17]At [64].
[18]At [58]–[59].
[19]At [60].
[20]At [60].
[21]At [62].
Mr Hai applied for leave to appeal to the High Court.[22] He also applied to adduce further evidence in support of his appeal; two affidavits from Mr Hai and one from Ms Winikerei.[23] Mr Hai’s affidavits set out details of his income and increased reparation payments.[24] Also exhibited were bank statements showing expenditure on regular visits to Hokianga.[25] Ms Winikerei’s affidavit set out the couple’s long-term plan to re-establish a single household.[26]
[22]Section 245 of the Immigration Act 2009 provides that a party to a Tribunal appeal may appeal on a point of law to the High Court only with the leave of that Court or the Court of Appeal if the High Court declines leave to appeal.
[23]High Court decision, above n 3, at [11].
[24]At [12].
[25]At [12].
[26]At [13].
The Judge refused to admit the evidence considering it was not fresh and “add[ed] little to the evidence [Mr Hai and Ms Winikerei had] already given”.[27] There does not appear to be an appeal from this finding.
[27]At [15]–[17].
Mr Hai identified three questions of law for consideration by the Judge.[28] They were not precisely the same as the questions posed in the leave application to this Court. Questions (a) (international obligations) and (b) (choice to live separately) were the same, but question (c) (connection of the youngest child) was not put in the High Court. Instead a different question was posed challenging the Tribunal’s power to make any deportation order in this case.[29] It is unnecessary to explain why that argument was raised because the Judge rejected it as lacking merit and his finding in that regard is not challenged in this application for leave to appeal.[30]
[28]At [27].
[29]The question posed was whether Mr Hai could not be deported from New Zealand because of the combined effect of s 437 of the Immigration Act 2009 and s 93 of the Immigration Act 1987.
[30]At [30]–[33].
As to question (a) (international obligations), the Judge found, following this Court’s decision in Puli’uvea v Removal Review Authority, that there was no requirement on the Tribunal to make express reference to the provisions of relevant international instruments, what mattered was the substance of the decision.[31] The Judge found that in substance the Tribunal had comprehensively considered the interests of Mrs Hai, Ms Winikerei and their respective families and so had plainly applied relevant international standards.[32] The question raised was therefore not capable of bona fide and serious argument.[33]
[31]At [36], citing Puli’uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA) at 326.
[32]At [37]–[38].
[33]At [39].
Finally, the Judge addressed the question posed in (b) (choice to live separately).[34] The Judge applied the decision of Kós J (as he was then) in Taafi v Minister of Immigration in finding that the question did not raise a point of law as required by s 245 of the Act, but was instead a challenge to a factual finding.[35]
Application to adduce further evidence in this Court
[34]At [40]–[43].
[35]At [42]–[43], citing Taafi v Minister of Immigration [2013] NZAR 1037 (HC).
Mr Hai’s application to adduce further evidence was made less than a week before the hearing in this Court. This, it seems, was in part because counsel had been quite unwell (a medical certificate was provided) but also because Mr Hai struggled to meet the costs of the new evidence. The application is opposed by the Minister. The opposition is for substantive rather than procedural reasons and we have assessed it on its merits accordingly.
The evidence
The evidence sought to be adduced in this Court was not the same as that the subject of the High Court application to admit further evidence. Mr Hai did, in the application, seek to update evidence he gave in the Tribunal but the more substantive evidence was that of Linda Wikaira and Dr Caleb Armstrong. This evidence was obtained after the High Court appeal.
Ms Wikaira is a teacher at Te Kura o Omanaia. She teaches Mr Hai’s two young daughters. She deposed in June 2018:
During the course of this year I became concerned with [Mr Hai’s daughter’s] wellbeing and welfare. For no reason at all she would break down in tears during learning time in class. She had always otherwise been a bubbly, confident student. I therefore made contact with her mother, Marama. She informed me that her children, in particular [this daughter], were struggling with the thought of their father being deported.
Dr Armstrong is a forensic psychiatrist who specialises in the needs of children and adolescents. He appended to his affidavit of 7 June 2018 his brief report dated 23 May 2018. He interviewed Mr Hai and Ms Winikerei and “met” all three of their children. It does not appear that he interviewed the children. In his report he concluded:
In my view, the potential suffering for Mr Hai if deported is far outweighed by the likely long-term negative effects on his young, dependent family should he be deported. There is potential for significant harm to be done to his New Zealand citizen children through his absence. There is a dilemma between serving the interests of justice and serving the needs of New Zealand citizen children. Of note it appears likely that Mr Hai and his children have a good chance of being reunited in the same household, should Mr Hai’s appeal be successful.
Among Dr Armstrong’s reasons for these conclusions was the following:
There are methodologically robust studies showing long-term negative effects of father absence on children, which persist into adolescence and adulthood. It is likely that Mr Hai’s absence from the family would place a significant burden upon his family with potentially long-lasting negative effects on their outcomes.
The test
To be admitted in this Court, further evidence should be fresh (that is it could not, with reasonable diligence, have been produced at first instance), credible (that is
reasonably capable of belief), and cogent (likely to have an important influence on the result).[36][36]Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA), affirmed by the Supreme Court as applicable to r 45 of the current Court of Appeal (Civil) Rules 2005 in Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1. See also Paper Reclaim Ltd v Aotearoa International Ltd(Further Evidence) (No 2) [2007] NZSC 1, [2007] 2 NZLR 124.
In the specific area of immigration appeals there is also the overlay of s 226 of the Act making it the responsibility of Mr Hai to establish his case and to ensure that all evidence is before the Tribunal. As this Court has noted in relation to applications for leave to bring judicial review under s 249 of the Act, the Court may reject or discount new evidence on the ground that its admission is contrary to the scheme of the legislation.[37] We agree with counsel for the Minister that this principle applies equally to applications for leave to appeal under s 245 of the Act.
Assessment
[37]CD v Immigration and Protection Tribunal [2015] NZCA 379, [2015] NZAR 1494 at [23].
The evidence from Ms Wikaira is obviously credible — she is an independent professional educator recording her observation of a young pupil. And it is fresh in the sense that it relates to purported behavioural changes in that child that post-date both the Tribunal and High Court judgments. Its cogency depends upon its relevance. Question (c) as posed relates only to the youngest of Mr Hai’s three children by Ms Winikerei. Ms Wikaira’s evidence does not relate to him. He is not yet of school age.
The problem is that question (c) is too narrow in scope. But given the interests of the children is our focus, we are not minded to dismiss the application on that basis. Had the question encompassed the interests of the daughters too, the evidence would undoubtedly have been relevant and cogent.
The evidence of Dr Armstrong is credible as far as it goes. It is not fresh, in the sense that he could have been instructed to provide his report prior to the Tribunal hearing, but that is perhaps a counsel of perfection given Mr Hai’s limited means as a truck driver. We are satisfied that “exceptional and compelling circumstances” exist on these facts, such that it would be unjust to ignore that factor.[38] As Mr Hai said in his supporting affidavit, he has struggled to find a psychiatrist who was available, and he struggled equally to meet the fees of his counsel and his day to day costs, let alone the fees of an expert witness.
[38]Rae v International Insurance Brokers (Nelson Marlborough) Ltd, above n 36, at 193.
As to cogency, it must be said that Dr Armstrong’s report is limited in its terms and somewhat generalised. He notes that he met the children but does not appear to have interviewed them. For Mr Hai, Mr Telle submitted that should leave be granted Dr Armstrong’s evidence was “the type of evidence which will be adduced for the purposes of [Mr Hai’s] appeal”. Thus the report appears to have been adduced only for the purposes of the leave application, rather than the appeal itself. This is less than satisfactory but may be explained by limitations in time and resource. In any event we are prepared to admit it for the limited purpose for which it was filed, primarily because it provides a psycho-medical context for the observations of Ms Wikaira, and we have concluded her evidence is admissible.
We are satisfied this result is also consistent with the scheme of the Act. Despite the limitation of appeal grounds to questions of law only, the authorities, as we shall see, do contemplate fact-based grounds giving rise to questions of law in some circumstances. And despite the terms of s 226 of the Act, the interests of the children are matters given particular significance under the Act. While s 226 places responsibility to prove their case firmly on the shoulders of an appellant, it would still be inconsistent with the scheme of the Act and New Zealand’s international obligations, to decline to consider relevant and potentially influential evidence in relation to the interests of affected children.
We grant the application to adduce further evidence accordingly.
In light of that evidence, we turn to consider the application for leave.
Question (a) — International obligations
Submissions
Mr Hai’s submissions in relation to question (a) were that the Tribunal failed to consider New Zealand’s relevant international obligations and so erred in law.
In particular:(a)The Tribunal failed to consider art 13 (procedural justice before deportation); art 15(1) (imposition of heavier penalties than that applicable at the time of the offending) and art 23 (family is the fundamental unit of society) of the ICCPR.
(b)The Tribunal failed to consider art 3(1) (best interests of the child a primary consideration); art 3(2) (ensure child such care and protection as is necessary for wellbeing); art 9 (no separation from parents except in the best interests of the child); art 12(1) (giving weight to views of the child); art 12(2) (opportunity for child to be heard); and art 18(1) (recognise both parents responsible for raising the child) of the UNCROC.
(c)The Tribunal also failed to consider art 10(1) (the widest possible protection and assistance must be given to the family) of the ICESCR.
Analysis
We agree with the Judge that there is no basis upon which leave should be granted in relation to this question.[39] As this Court said in Puli’uvea v Removal Review Authority (cited by the Judge), the requirement is to consider the substance of the international obligations not to identify the source of the obligations.[40] As the Minister noted, the relevant obligations are family and child related given the facts in this case. Articles 3(1) and 9 of the UNCROC are particularly relevant. It is plain however that the Tribunal was very focussed on the issues identified in those articles. The application in relation to this question must be dismissed.
Questions (b) and (c) — errors of fact
Leave standard
[39]High Court decision, above n 3, at [39].
[40]Puli’uvea v Removal Review Authority, above n 31, at 326.
Assuming the application for leave to appeal raises a question of law as required by s 245(1) of the Act, subs (3) sets out the matters the Court must consider. It provides:
245 Appeal to High Court on point of law by leave
…
(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.
(Emphasis added.)
Section 245(3)’s terms are informed by and based loosely on the common law test applied in relation to second appeals both under the now repealed s 67 of the Judicature Act 1908 and s 60 of the current Senior Courts Act 2016.[41] The underlying principle was set out by Blanchard J in Waller v Hider: [42]
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.
[41]See Waller v Hider [1998] 1 NZLR 412 (CA) at 413; Guo v Minister of Immigration [2014] NZCA 513; and Minister of Immigration v Jooste [2014] NZCA 23.
[42]At 413.
Section 245 of the Act only permits appeals on questions of law. Questions (b) and (c) seek to establish that the Tribunal has made errors of fact the nature of which give rise to errors of law. In Taafi v Minister of Immigration the High Court considered the applicable standard where the attack on the Tribunal’s judgment is based on criticisms of factual findings.[43] The applicant, it was said, faced a “triple hurdle”.[44] In addition to demonstrating that there had been an erroneous factual finding, the Court had to be satisfied the error was so egregious as to amount also to an error of law.[45] The applicant had finally to identify “exceptional circumstances, involving individual injustice to such an extent that the Courts simply could not countenance the first instance decision standing”.[46]
[43]Taafi v Minister of Immigration, above n 35.
[44]At [19].
[45]At [19(a)–(b)].
[46]At [19(c)].
This Court affirmed that threshold in Machida v Chief Executive of Immigration New Zealand.[47] But in subsequent High Court decisions, Palmer J in R M v Immigration and Protection Tribunal and AI (Somalia) v Immigration and Protection Tribunal, and Heath J in Hu v Immigration and Protection Tribunal have doubted this interpretation and favoured a more flexible test.[48] In Kumar v Minister of Immigration this Court noted these developments but considered it was not required to address this apparent disagreement in that case.[49]
[47]Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
[48]R M v Immigration and Protection Tribunal [2016] NZHC 735 at [35]–[37]; AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [32]; and Hu v Immigration and Protection Tribunal [2016] NZHC 1661 at [17]–[19]. We acknowledge, as did Palmer J in AI (Somalia) reflecting on a similar suggestion from Whata J in BU v Immigration and Protection Tribunal [2016] NZHC 1499 at [36], that the distinction may be no more than a matter of tone and emphasis since, according to AI (Somalia) at [32], both in the end “depend on and are driven by, the interests of justice”.
[49]Kumar v Minister of Immigration [2016] NZCA 492, [2016] NZAR 1591 at [7].
For the reasons that follow, we do not need to resolve the issue in this application either.
Limb one: “general or public importance”
Although Mr Hai argued that the two error of fact questions gave rise to matters of general or public importance, we do not think that suggestion is tenable. Question (b) suggests the Tribunal was wrong in concluding the couple chose to live apart, while question (c) suggests that Mr Hai’s son is too young to have any meaningful connection with his often-absent father. The answers to questions (b) and (c) will not be of practical significance to anyone other than Mr Hai, his family and the Minister.
Limb two: “any other reason”
We then move to the second limb of s 245(3) of the Act. Under that limb, even if not satisfied that the matter raised is of general or public importance, the Court may grant leave “for any other reason”.
Applying the Taafi v Minister of Immigration standard to Mr Hai’s case, the question at the leave stage is therefore whether there is a seriously arguable case that the Tribunal applied the relevant international and human rights standards on a wrong factual premise in relation to the impact of Mr Hai’s deportation on his children, and therefore wrongly applied those standards. That would amount to an error of law in the Edwards v Bairstow sense if the true position was there was no evidence to support the conclusion the Tribunal reached.[50] Further Mr Hai must demonstrate that the error, if shown, should be corrected despite its narrow case-specific significance, because the potential impact on the children’s interests, properly understood, would be unjust and inconsistent with New Zealand’s international obligations and therefore not to be countenanced.
Question (b)
[50]Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL).
In relation to question (b), Mr Hai argued that the Tribunal’s finding that he and Ms Winikerei “choose not to live together” and had “no current plan to do so in the near future”, was an error of fact grave enough to clear the three Taafi v Minister of Immigration hurdles.[51] There was, Mr Hai submitted, no choice in his living arrangements. Rather, the separation was a matter of economic necessity for Mr Hai, and family necessity for Ms Winikerei. This error, it was argued, should be corrected either as a breach of natural justice (a label Mr Hai’s counsel ascribed to a finding of fact with no evidence to support it) or as a matter of general importance given, it was said, the increasing number of long‑distance relationships to which the Tribunal’s assessment might be applied.
[51]Tribunal decision, above n 1, at [46].
We do not see the suggested error. We accept that Mr Hai and Ms Winikerei had limited choice in the matter of their living arrangements. But the cause of the couple’s living arrangements was not the point in the Tribunal’s comment. Rather the Tribunal’s point was that the impact of a more permanent form of separation will be less for a couple already living in a relationship that involves regular lengthy separation. Even if the Tribunal was wrong and the couple had no choice whatever in their living arrangements, we do not see how that would have made a difference. It could not therefore be realistically said that any error about the extent of the couple’s choice (if it was an error at all), was so serious as to constitute an error of law that should not be left to stand as a matter of justice.
Question (c)
In relation to question (c) Mr Hai argued that the Tribunal made an error of fact in concluding that his youngest child was “too young to have formed a close attachment to [Mr Hai] such that he would realise [Mr Hai’s] absence”.[52] Mr Hai argued that this finding was central to the Tribunal’s conclusions under s 207(1)(a) that deportation was not unduly harsh in this case. Again, Mr Hai argued that it was a breach of natural justice to found such an important conclusion on no evidence.
[52]Tribunal decision, above n 1, at [48].
For the Minister, it was argued that the Tribunal had properly understood the likely impact of Mr Hai’s deportation on his children. Further the Minister argued that Mr Hai’s attachment to his youngest child was not the ultimate issue. Rather the Tribunal made a more general assessment of the impact of deportation on all three children and concluded that his more limited role in their lives reduced that impact. In any event, the Minister argued, such impact was outweighed by countervailing factors: the seriousness of Mr Hai’s offending and the fact that he had already been deported once for earlier dishonesty offending.
Although this is not in fact the focus of question (c), the evidence of the teacher, Ms Wikaira, suggests that the impact of Mr Hai’s departure on his daughter could be more significant than the Tribunal had thought and perhaps not moderated by largely separate living arrangements to the extent suggested by the Tribunal. We were not provided with the actual evidence adduced by Mr Hai in the Tribunal itself, but the summary of evidence provided in the Tribunal’s judgment suggests the evidence of impact on the children was limited and there appears to be no evidence specific to the needs of Mr Hai’s youngest son. The indicative evidence from Dr Armstrong is also generic in nature as we indicated.
The Tribunal readily accepted that Mr Hai’s permanent absence from New Zealand would not be in the best interests of the children (a conclusion that was obvious in the circumstances and required no expert support), and so found that there were, by a “small margin”, exceptional circumstances of a humanitarian nature.[53] But it had then to weigh that impact against counterveiling factors to determine whether deportation would be unduly harsh or unjust. That required the Tribunal to assess the degree of impact in order to decide which side of the scales carried the greater weight. That weighing process is of course always for the Tribunal, but it must be based on an assessment of relevant evidence.
[53]At [50].
We conclude it is seriously arguable that the Tribunal came to its view of the impact of Mr Hai’s deportation on all three of the younger children without a proper evidential foundation. The new evidence of Ms Wikaira suggests it is arguable that any moderating effect of Mr Hai’s regular absences may be limited. For his part, Dr Armstrong points to studies that demonstrate “father absence” can negatively impact on children’s “outcomes” leading to “substance use, educational failure and early childbearing”. These matters were not brought to the Tribunal’s attention as far as we can tell. Further the Tribunal pointed to no particular evidence to support its conclusion that Mr Hai’s son had limited attachment to his father.
While the Act is clear that it is for the appellant to adduce the necessary evidence to support his appeal in the Tribunal,[54] the focus here is not on Mr Hai, but on his children. The potential impact of their particular needs on Mr Hai’s immigration status is a consequence, but not a driver, of that assessment. If the Tribunal’s assessment was wrong in fact (we of course have no view on that question other than the point is arguable), then it would not be in the interests of justice to allow that assessment to stand. Thus a punctilious adherence on appeal to the requirements of s 226 of the Act would be inconsistent with the scheme of the Act and New Zealand’s commitments under the UNCROC. In our view, the correct approach where the focus of the question is the interests of the children, is to err on the side of allowing the issues to be properly ventilated in a substantive appeal.
[54]Immigration Act, s 226(1).
We conclude that the point is sufficiently seriously arguable and leave should be granted in that respect.
Result
The application to adduce further evidence is granted.
As noted, we consider that question (c) is too narrow in its ambit and so misses the real issue. It must be widened to apply to all of the children. We would therefore grant leave to appeal in relation to the following questions:
(a)Was the Tribunal’s finding, that because Mr Hai did not permanently reside with his children the negative impact on the children of deportation was outweighed by other factors, made without evidence reasonably capable of supporting that conclusion, especially in light of the new evidence of Ms Wikaira and Dr Armstrong?
(b)If the answer to question (a) is yes, did this cause the Tribunal to misapply arts 3 and 9 of the United Nations Convention on Rights of the Child?
(c)If the answer to question (b) is yes, should the proceeding be referred back to the Tribunal for rehearing?
A full report by way of affidavit may now be required from Dr Armstrong. This will be for the High Court to consider in light of these questions.
The application for leave to appeal is otherwise declined.
The respondent must pay the applicant costs for a standard application on a band A basis and usual disbursements.
Costs in the High Court are to be dealt with in that Court.
Solicitors:
Neilsons Lawyers, Auckland for Applicant
Crown Law Office, Wellington for First Respondent
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